Criminal Defense Clinic Fights NYPD Transit Recidivist Policy

One semester after arguing the case before the New York Civil Supreme Court, Fordham Law School’s Criminal Defense Clinic is continuing its fight to have the NYPD’s transit recidivist policy, which mandates arrests based on an individual’s arrest history, ruled unconstitutional.

3L clinic members Marjorie Dugan and Claire Glass argued before the court in fall 2016 that the NYPD’s transit recidivist policy violates Article 1, Section 12 of the New York State Constitution’s protection against unreasonable search and seizure. This semester, Dugan and Glass, plus 2Ls Nina Kucharczyk and Brian Kraekel, are working on drafting an appellate brief in the expected event they would need to appeal a judge’s ruling.

The NYPD transit recidivist policy puts many subway passengers at risk. In 2015 alone, subway ridership surged to 1.763 billion. Activities constituting transit violations include eating and sleeping on the train, walking between subway cars, and a single person taking up two seats—everyday activities that many New Yorkers don’t know are against the law.

“These activities could be addressed with a summons, warning, or nothing at all, but under this policy they must result in an arrest for people with certain arrest histories,” Kucharczyk said.

The NYPD’s transit recidivist policy came to the Criminal Defense Clinic’s attention following the 2010 arrest of a man whom police stopped for walking between subway cars. The clinic helped resolve the man’s case in 2011 before challenging the NYPD’s policy as a whole. Notably, police testified in a deposition that they did not intend to arrest the original client before checking his arrest history, but were required to arrest him in accordance with departmental policy.

“When an officer has probable cause but no intention of acting on it—and does not act on it— then the analysis is under the umbrella of a limited stop, where an individual has more protection,” Glass explained. The team argued that transit stops are analogous to traffic stops, which the Supreme Court of the United States has held are limited stops, and not full-blown arrests, even though officers often have probable cause to arrest at the outset of the detention.

New York state law does not allow police to escalate a limited stop to a full-blown arrest unless there is a present suspicion of criminal activity beyond the transit violation or an obstacle to issuing a ticket, Dugan noted. A person’s arrest history cannot be the basis for objective suspicion of present criminal activity, the New York Supreme Court’s Appellate Division ruled in People v. Boulware (1987).

NYPD’s transit recidivist policy is yet another broken windows policing tactic, related to stop-and-frisk, which then-federal judge Shira A. Scheindlin ruled was unconstitutional in Floyd v. City of New York.

“This lawsuit asks the court to declare the policy unconstitutional so other New Yorkers are spared the injustice our client suffered,” Glass said. “He certainly isn’t alone in having this experience.”

Whether arguing the case before the New York Civil Supreme Court or working on a potential appeal, the Criminal Defense Clinic’s members agreed their experiences on this case will bolster their careers post-law school. For Glass and Dugan, the clinic has provided an enriching opportunity to prepare and give oral arguments and work on the appeal.

“It’s one thing to study the Fourth Amendment in Criminal Procedure but applying it to an individual case in the real world is entirely different, and the clinic gives us the tools and opportunity to do so,” Glass said.

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Founded in 1841, Fordham is the Jesuit University of New York, offering exceptional education distinguished by the Jesuit tradition to more than 15,100 students in its four undergraduate colleges and its six graduate and professional schools.